Eviction Ban Extended But Welcome Relief for Landlords in Substantial Rent Arrears Cases

The Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 came into force this week (Monday 11 January 2021) extending the eviction ban for residential properties. The regulations apply to England only, and provide that no evictions can take place until 21 February 2021. The Government has confirmed that the end date of the ban will be regularly reviewed. Court proceedings for possession are unaffected by the ban, and landlords can still progress to obtaining a possession order.

As with the previous eviction ban regulations, there are exemptions to the ban in certain serious circumstances, including cases involving trespassers, antisocial behaviour and “substantial rent arrears”. Crucially, the threshold for “substantial rent arrears” has been reduced to 6 months’. 

The explanatory memorandum of the Regulations gives further guidance as to how the exemptions will work in practice. It states that when making an order for possession, the court will record whether the order falls within one of the exemptions. In cases where a possession order was made before the new regulations were introduced, the landlord will need to make an application to court for a determination as to whether an exemption applies. Hopefully, this will be a straightforward procedure, but given the backlog in the court system, there will inevitably be delays.

Expert Opinion

“In theory, this is a very welcome change for landlords. In the previous regulations, the substantial rent arrears exemption only applied where there were 9 months’ arrears on or before 23 March 2020, which is extremely limited (if there were 9 months' arrears before 23 March 2020, they would now be at 18 months'). Many landlords are suffering severe hardship by rent arrears levels significantly below that figure, and 6 months’ appears to be a more balanced threshold.

“Whether or not bailiffs will actually carry out evictions during lockdown is another matter. We have heard instances of bailiff officers implementing their own policies not to carry out evictions in a period of lockdown. There is also the question of how a bailiff deals with a situation where they attend a property for an eviction, and the tenant claims to be self-isolating. Presumably, the eviction could not be carried out. However, it is hoped that bailiffs will proceed with evictions in accordance with the Regulations if they can do so safely.”
George Cohen - Associate Solicitor